EXHIBIT 4.11
EXECUTION COPY
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VESTING WARRANT
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February 28, 1997
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAW OF
ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH
ACT AND SUCH LAWS.
No. VGW-1 Warrant to Purchase up to 53,654
Shares of Common Stock
BANKVEST CAPITAL CORP.
COMMON STOCK PURCHASE WARRANT
Void after February 27, 2007
BANKVEST CAPITAL CORP. (the "COMPANY" ), a Massachusetts corporation,
hereby certifies that for value received, WHITNEY SUBORDINATED DEBT FUND, L.P.
("WSDF"), a Delaware limited partnership, or assigns (the "HOLDER"), is entitled
to purchase, subject to the terms and conditions hereinafter set forth, an
aggregate of 53,654 fully paid and nonassessable shares of Common Stock, $1.00
par value (as defined herein) of the Company less the number of shares computed
as the product of the Repayment Amount multiplied by the Adjustment Factor, at
an exercise price of $15.00 per Warrant Share (as defined herein) (the "PURCHASE
PRICE"), subject to all adjustments as provided for herein, at any time or from
time to time beginning on the Vesting Date (as defined herein), and ending at
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5:00 P.M., New York City time, on February 27, 2007 (the "EXPIRATION DATE").
This Warrant is issued pursuant to the Securities Purchase Agreement (the
"PURCHASE AGREEMENT"), dated as of February 28, 1997, by and between the Company
and Whitney Subordinated Debt Fund, L.P., and is subject to the terms thereof.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned such terms in the Purchase Agreement. The Holder is entitled to the
rights and subject to the obligations contained in the Purchase Agreement,
the Registration Rights Agreement and the Stockholders Agreement relating to
this Warrant and the shares of Common Stock issuable upon exercise of this
Warrant.
1. DEFINITIONS. For the purposes of this Warrant, the following terms
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shall have the meanings indicated:
"ADJUSTMENT FACTOR" shall mean .00357693.
"APPLICABLE PRICE" shall mean the higher of (a) the Current Market
Price per share of Common Stock on the applicable record or other relevant date
and (b) the Dilution Price.
"ARTICLES OF INCORPORATION" shall mean the Articles of Incorporation
of the Company as in effect on February 28, 1997.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in the City of New York are authorized or
required by law or executive order to close.
"CANCELLATION PORTION" has the meaning ascribed to such term in
Subsection 2(b).
"CLOSING PRICE" shall mean, with respect to each share of Common Stock
for any day, (a) the last reported sale price regular way or, in case no such
sale takes place on such day, the average of the closing bid and asked prices
regular way, in either case as reported on the principal national securities
exchange on which the Common Stock is listed or admitted for trading or (b) if
the Common Stock is not listed or admitted for trading on any national
securities exchange, the last reported sale price or, in case no such sale takes
place on such day, the average of the highest reported bid and the lowest
reported asked quotation for the Common Stock, in either case as reported on the
NASDAQ or a similar service if NASDAQ is no longer reporting such information.
"COMMON STOCK" means the Class A common stock, $1.00 par value per
share, of the Company, and any class of stock resulting from successive changes
or reclassification of such Common Stock.
"COMPANY" has the meaning ascribed to such term in the first paragraph
of this Warrant.
"CURRENT MARKET PRICE" shall be determined in accordance with
Subsection 3(e).
"DILUTION PRICE" shall mean, with respect to each share of Common
Stock, $15.00, subject to appropriate adjustment for events described in
Subsection 3(a).
"EXERCISE DATE" has the meaning ascribed to such term in Subsection
2(d).
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"EXPIRATION DATE" has the meaning ascribed to such term in the first
paragraph of this Warrant.
"HOLDER" has the meaning ascribed to such term in the first paragraph
and Section 9 of this Warrant.
"INITIAL PUBLIC OFFERING" means the sale by either the Company or any
of its Subsidiaries of its capital stock pursuant to a registration statement on
Form S-1 or otherwise under the Securities Act.
"NASDAQ" shall mean the Automatic Quotation System of the National
Association of Securities Dealers, Inc.
"NOTE" shall mean the Subordinated Promissory Note, dated the date
hereof, in the principal amount of $15,000,000, with the Company as the maker
thereof, and the Holder as the payee thereof.
"PERSON" shall mean any individual, firm, corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, government (or an agency or political subdivision thereof) or other
entity of any kind, and shall include any successor (by merger or otherwise) of
such entity.
"PRE DILUTED COMMON STOCK" shall mean the number of shares of Common
Stock issued and outstanding, plus the number of shares of Common Stock issuable
upon exercise of this Warrant, the Vested Warrant, in each case prior to giving
effect to the transaction which causes an adjustment to the Purchase Price
pursuant to Section 3 hereof, plus the number of shares of Common Stock issuable
as a result of the transaction in question or upon the exercise, exchange and/or
conversion of the securities issued in the transaction in question.
"PURCHASE AGREEMENT" has the meaning ascribed to such term in the
second paragraph of this Warrant.
"PURCHASE PRICE" has the meaning ascribed to such term in the first
paragraph of this Warrant.
"REPAYMENT AMOUNT" shall mean the total amount of principal that has
been repaid on the Note as of the Vesting Date.
"STOCKHOLDERS AGREEMENT" means the First Amendment to Stockholders
Agreement substantially in the form attached to the Purchase Agreement as
Exhibit C.
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"SUBSIDIARY" shall mean, with respect to any Person, a corporation or
other entity of which 50% or more of the voting power of the voting equity
securities or equity interests is
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owned, directly or indirectly, by such Person.
"VESTED WARRANT" shall mean the warrant to acquire up to an additional
118,038 shares of Common Stock and exercisable as set forth in such warrant.
"VESTING DATE" shall mean August 31, 2000.
"WARRANT" shall mean this Warrant and any subsequent Warrant issued
pursuant to Subsection 2(c) or to a transferee as contemplated in Section 9.
"WARRANT REGISTER" has the meaning ascribed to such term in Subsection
9(b).
"WARRANT SHARES" shall mean the shares of Common Stock issuable upon
exercise, and to the extent the Warrant has been exercised, such shares issued
upon exercise.
2. EXERCISE OF WARRANT.
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(a) Exercise. Subject to the restrictions set forth in the
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introductory paragraph of this Warrant, this Warrant may be exercised, in whole
or in part, at any time or from time to time on or prior to the Expiration Date,
by surrendering to the Company at its principal office this Warrant, with the
form of Election to Purchase Shares (the "ELECTION TO PURCHASE SHARES") attached
hereto as Exhibit A duly executed by the Holder and accompanied by payment of
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the Purchase Price for the number of shares of Common Stock specified in such
form.
(b) Delivery of Shares; Payment of Purchase Price. As soon as
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practicable after surrender of this Warrant and receipt of payment, the Company
shall promptly issue and deliver to the Holder a certificate or certificates for
the number of shares of Common Stock set forth in the Election to Purchase
Shares, in such name or names as may be designated by such Holder, along with a
check for the amount of cash to be paid in lieu of issuance of fractional
shares, if any. Payment of the Purchase Price may be made as follows (or by any
combination of the following): (i) in United States currency by cash or delivery
of a certified check, bank draft or postal or express money order payable to the
order of the Company, (ii) by assigning to the Company all or any part of the
unpaid principal amount of the Note held by the Holder in a principal amount
equal to the Purchase Price, (iii) by surrender of a number of shares of Common
Stock held by the Holder equal to the quotient obtained by dividing (A) the
Purchase Price payable with respect to the portion of this Warrant then being
exercised by (B) the Current Market Price per share of Common Stock on the
Exercise Date, or (iv) by cancellation of any portion of this Warrant (the
"CANCELLATION PORTION") with respect to the number of shares of Common Stock
equal to the quotient obtained by dividing (A) the sum of the Purchase Price
payable with respect to the portion of this Warrant then being exercised by
cancellation of the Cancellation Portion and the Purchase Price that would be
payable with respect to the Cancellation Portion if such portion was being
exercised rather than canceled by (B) the Current Market Price per share of
Common Stock on the Exercise Date.
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(c) Partial Exercise. If this Warrant is exercised for less than all
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of the shares of Common Stock purchasable under this Warrant, the Company shall
cancel this Warrant upon surrender hereof and shall execute and deliver to the
Holder a new Warrant of like tenor for the balance of the shares of Common Stock
purchasable hereunder.
(d) When Exercise Effective. The exercise of this Warrant shall be
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deemed to have been effective immediately prior to the close of business on the
Business Day on which this Warrant is surrendered to and the Purchase Price is
received by the Company as provided in this Section 2 (the "EXERCISE DATE") and
the Person in whose name any certificate for shares of Common Stock shall be
issuable upon such exercise, as provided in Subsection 2(b), shall be deemed to
be the record holder of such shares of Common Stock for all purposes on the
Exercise Date.
(e) Continued Validity. A Holder of shares of Common Stock issued
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upon the exercise of this Warrant, in whole or in part, shall continue to be
entitled to all of the rights and subject to all of the obligations set forth in
Section 9.
3. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The Purchase Price
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and the number of Warrant Shares shall be adjusted from time to time upon the
occurrence of the following events occurring after the initial issuance of this
Warrant which shall be applied retroactively to the number of shares which are
issuable upon exercise of this Warrant as computed on the Vesting Date.
(a) Dividend, Subdivision, Combination or Reclassification of Common
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Stock. If the Company shall, at any time or from time to time, (i) declare a
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dividend on the Common Stock payable in shares of its capital stock (including
Common Stock), (ii) subdivide the outstanding Common Stock into a larger number
of shares of Common Stock, (iii) combine the outstanding Common Stock into a
smaller number of shares of its Common Stock, or (iv) issue any shares of its
capital stock in a reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then in each such case, the Purchase
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Price in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or reclassification, and the
number and kind of shares of capital stock issuable on such date shall be
proportionately adjusted so that the Holder of any Warrant exercised after such
date shall be entitled to receive, upon payment of the same aggregate amount as
would have been payable before such date, the aggregate number and kind of
shares of capital stock which, if such Warrant had been exercised immediately
prior to such date, such Holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision, combination or
reclassification. Any such adjustment shall become effective immediately after
the record date of such dividend or the effective date of such subdivision,
combination or reclassification. Such adjustment shall be made successively
whenever any event listed above shall occur. If a dividend is declared and such
dividend is not paid, the Purchase Price shall again be adjusted to be the
Purchase Price in effect immediately prior to such record date.
(b) Issuance of Rights to Purchase Common Stock Below Current Market
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Price or Dilution Price. If the Company shall, at any time or from time to time,
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fix a record date for the
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issuance of rights, options or warrants to all holders of Common Stock entitling
them (for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Common Stock, or securities convertible into Common
Stock at a price per share of Common Stock or having a conversion price per
share of Common Stock if a security is convertible into Common Stock (determined
in either such case by dividing (x) the total consideration payable to the
Company upon exercise, conversion or exchange of such rights, options, warrants
or other securities convertible into Common Stock by (y) the total number of
shares of Common Stock covered by such rights, options, warrants or other
securities convertible into Common Stock) lower than either the Current Market
Price per share of Common Stock on such record date (or, if an ex-dividend date
has been established for such record date, on the day next preceding such ex-
dividend date) or the Dilution Price, then, the Purchase Price shall be reduced
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to the price determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the sum
of the number of shares of Common Stock outstanding on such record date plus the
number of additional shares of Common Stock which the aggregate offering price
of the total number of shares of Common Stock so to be offered (or the aggregate
initial conversion price of the convertible securities so to be offered) would
purchase at the Applicable Price and the denominator of which shall be the
number of shares of Common Stock outstanding on such record date plus the number
of additional shares of Common Stock to be offered for subscription or purchase
(or into which the convertible securities so to be offered are initially
convertible). In case such price for subscription or purchase may be paid in a
consideration part or all of which shall be in a form other than cash, the value
of such consideration shall be determined in good faith by the Board of
Directors of the Company. Any such adjustment shall become effective immediately
after the record date for such rights or warrants. Such adjustment shall be made
successively whenever such a record date is fixed. If such rights, options or
warrants are not so issued, the Purchase Price shall be adjusted to the Purchase
Price in effect immediately prior to such record date.
(c) Certain Distributions. If the Company shall, at any time or from
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time to time, fix a record date for the distribution to all holders of Common
Stock (including any such distribution made in connection with a consolidation
or merger in which the Company is the continuing corporation) of evidences of
indebtedness, assets or other property (other than regularly scheduled cash
dividends or cash distributions payable out of consolidated earnings or earned
surplus or dividends payable in capital stock for which adjustment is made under
Subsection 3(a)) or subscription rights, options or warrants (excluding those
referred to in Subsection 3(b)), then the Purchase Price shall be reduced to the
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price determined by multiplying the Purchase Price in effect immediately prior
to such record date by a fraction (which shall in no event be less than zero),
the numerator of which shall be the Current Market Price per share of Common
Stock on such record date (or, if an ex-dividend date has been established for
such record date, on the next day preceding such ex-dividend date), less the
fair market value (as determined in good faith by the Board of Directors of the
Company) of the portion of the assets, evidences of indebtedness, other
property, subscription rights or warrants so to be distributed applicable to one
share of Common Stock and the denominator of which shall be such Current Market
Price per share of Common Stock. Any such adjustment shall become effective
immediately after the record date for such distribution. Such adjustments shall
be made successively whenever such a record date is fixed. In the event that
such
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distribution is not so made, the Purchase Price shall be adjusted to the
Purchase Price in effect immediately prior to such record date.
(d) Issuance of Common Stock Below Current Market Price or Dilution
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Price. If the Company shall, at any time and from time to time, after the date
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hereof, directly or indirectly, sell or issue shares of Common Stock (regardless
of whether originally issued or from the Company's treasury), or rights,
options, warrants or convertible or exchangeable securities containing the right
to subscribe for or purchase shares of Common Stock (excluding shares issued (i)
in any of the transactions described in Subsections 3(a), (b) and (c) hereof,
(ii) upon exercise of this Warrant and the Vested Warrant, (iii) upon the
exercise or conversion of options, warrants or any other securities convertible
into or exchangeable for shares of Common Stock outstanding as of February 28,
1997 as set forth in Schedule 5.19 to the Purchase Agreement, if such shares
would otherwise be included in this Section 3(d)) at a price per share of Common
Stock (determined, in the case of rights, options, warrants or convertible or
exchangeable securities, by dividing (x) the total consideration received or
receivable by the Company in consideration of the sale or issuance of such
rights, options, warrants or convertible or exchangeable securities, plus the
total consideration payable to the Company upon exercise or conversion or
exchange thereof, by (y) the total number of shares of Common Stock covered by
such rights, options, warrants or convertible or exchangeable securities) lower
than either the Current Market Price per share of Common Stock or the Dilution
Price immediately prior to such sale or issuance, then the Purchase Price shall
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be reduced to a price determined by multiplying the Purchase Price in effect
immediately prior thereto by a fraction, the numerator of which shall be the sum
of the number of shares of Common Stock outstanding immediately prior to such
sale or issuance plus the number of shares of Common Stock which the aggregate
consideration received (determined as provided below) for such sale or issuance
would purchase at the Applicable Price and the denominator of which shall be the
total number of shares of Common Stock outstanding immediately after such sale
or issuance. Such adjustment shall be made successively whenever such sale or
issuance is made. For the purposes of such adjustments, the shares of Common
Stock which the holder of any such rights, options, warrants, or convertible or
exchangeable securities shall be entitled to subscribe for or purchase shall be
deemed to be issued and outstanding as of the date of such sale or issuance and
the consideration "received" by the Company therefor shall be deemed to be the
consideration actually received or receivable by the Company (plus any
underwriting discounts or commissions in connection therewith) for such rights,
options, warrants or convertible or exchangeable securities, plus the
consideration stated in such rights, options, warrants or convertible or
exchangeable securities to be payable to the Company for the shares of Common
Stock covered thereby. If the Company shall sell or issue shares of Common Stock
for a consideration consisting, in whole or in part, of property other than cash
or its equivalent, then in determining the "price per share of Common Stock" and
the "consideration" received or receivable by or payable to the Company for
purposes of the first sentence and the immediately preceding sentence of this
Subsection 3(d), the fair value of such property shall be determined in good
faith by the Board of Directors of the Company. The determination of whether any
adjustment is required under this Subsection 3(d) by reason of the sale and
issuance of rights, options, warrants or convertible or exchangeable securities
and the amount of such adjustment, if any, shall be made
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only at the time of such issuance or sale and not at the subsequent time of
issuance of shares of Common Stock upon the exercise of such rights to subscribe
or purchase.
(e) Determination of Current Market Price. For the purpose of any
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computation under Subsections (b), (c) or (d) of this Section 3 or any other
provision of this Warrant, the Current Market Price per share of Common Stock on
any date shall be deemed to be the average of the daily Closing Prices per share
of Common Stock for the 10 consecutive trading days commencing 15 trading days
before such date. If on any such date the shares of Common Stock are not listed
or admitted for trading on any national securities exchange or quoted by NASDAQ
or a similar service, the Current Market Price for such shares shall be the fair
market value of such shares on such date as determined in good faith by a
committee of disinterested members of the Board of Directors of the Company
based on a written opinion of an independent investment banking firm of
nationally recognized stature.
(f) De Minimis Adjustments. No adjustment in the Purchase Price shall
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be made if the amount of such adjustment would result in a change in the
Purchase Price per share of less than $0.05, but in such case any adjustment
that would otherwise be required to be made shall be carried forward and shall
be made at the time of and together with the next subsequent adjustment, which
together with any adjustment so carried forward, would result in a change in the
Purchase Price of $0.05 per share. If the Company shall, at any time or from
time to time, issue Common Stock by way of dividends on any stock of the Company
or subdivide or combine the outstanding shares of the Common Stock, such amount
of $0.01 (as theretofore increased or decreased, if such amounts shall have been
adjusted in accordance with the provisions of this clause) shall forthwith be
proportionately increased in the case of a combination or decreased in the case
of a subdivision or stock dividend so as appropriately to reflect the same.
Notwithstanding the provisions of the first sentence of this Subsection 3(f),
any adjustment postponed pursuant to this Subsection 3(f) shall be made no later
than the earlier of (i) three years from the date of the transaction that would,
but for the provisions of the first sentence of this Section 3(f), have required
such adjustment, (ii) an Exercise Date or (iii) the Expiration Date.
(g) Adjustments to Other Shares. In the event that at any time, as a
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result of an adjustment made pursuant to Subsection 3(a), the Holder shall
become entitled to receive, upon exercise of this Warrant, any shares of capital
stock of the Company other than shares of Common Stock, the number of such
other shares so receivable upon exercise of this Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the shares of Common Stock
contained in Subsections 3(a), (b), (c) and (d), inclusive, and the provisions
of Sections 2, 5, 6 and 7 with respect to the shares of Common Stock shall apply
on like terms to any such other shares.
(h) Adjustment of Number of Shares Issuable Upon Exercise. Upon each
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adjustment of the Purchase Price as a result of the calculations made in
Subsections 3(a), (b), (c) or (d), this Warrant shall thereafter evidence the
right to receive, at the adjusted Purchase Price, that number of shares of
Common Stock (calculated to the nearest one-hundredth) obtained by dividing
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(x) the product of the aggregate number of shares of Common Stock covered by
this Warrant immediately prior to such adjustment and the Purchase Price in
effect immediately prior to such adjustment of the Purchase Price by (y) the
Purchase Price in effect immediately after such adjustment of the Purchase
Price.
4. CERTIFICATE AS TO ADJUSTMENTS. Whenever the Purchase Price and
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the number of Warrant Shares, or the securities or other property deliverable
upon the exercise of this Warrant, shall be adjusted pursuant to the provisions
hereof, the Company shall promptly give written notice thereof to the Holder, in
accordance with Section 13, in the form of a certificate signed by the Chairman
of the Board, President or one of the Vice Presidents of the Company, and by the
Chief Financial Officer, Treasurer or one of the Assistant Treasurers of the
Company, stating the adjusted Purchase Price, the number of Warrant Shares, or
the securities or other property deliverable upon exercise of the Warrant,
calculated to the nearest cent or the nearest one-hundredth of a share and
setting forth in reasonable detail the method of calculation and the facts
requiring such adjustment and upon which such calculation is based. Each
adjustment shall remain in effect until a subsequent adjustment is required.
5. FRACTIONAL SHARES. Notwithstanding an adjustment pursuant to Section
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3(h) in the number Warrant Shares or pursuant to any other provision of this
Warrant, the Company shall not be required to issue fractions of shares upon
exercise of this Warrant or to distribute certificates which evidence fractional
shares. In lieu of fractional shares, the Company may make payment to the
Holder, at the time of exercise of this Warrant as herein provided, of an amount
in cash equal to such fraction multiplied by the greater of the Current Market
Price of a share of Common Stock on the Exercise Date and the Dilution Price.
6. NOTICE OF PROPOSED ACTIONS. In case the Company shall propose at any
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time or from time to time (a) to declare or pay any dividend payable in stock of
any class to the holders of Common Stock or to make any other distribution to
the holders of Common Stock (other than a regularly scheduled cash dividend),
(b) to offer to the holders of Common Stock rights or warrants to subscribe for
or to purchase any additional shares of Common Stock or shares of stock of any
class or any other securities, rights or options, (c) to effect any
reclassification of its Common Stock, (d) to effect any consolidation, merger or
sale, transfer or other disposition of all or substantially all of the property,
assets or business of the Company which would, if consummated, adjust the
Purchase Price or the Warrant Shares, (e) to effect the liquidation, dissolution
or winding up of the Company, or (f) to take any other action that would require
a vote of the Company's stockholders, then, in each such case, the Company shall
give to the Holder, in accordance with Section 13, a written notice of such
proposed action, which shall specify (i) the record date for the purposes of
such stock dividend, distribution of rights or warrants or vote of the
stockholders of the Company, or if a record is not to be taken, the date as of
which the holders of shares of Common Stock of record to be entitled to such
dividend, distribution of rights or warrants, or vote is to be determined, or
(ii) the date on which such reclassification, consolidation, merger, sale,
transfer, disposition, liquidation, dissolution or winding up is expected to
become effective, and such notice shall be so
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given as promptly as possible but in any event at least ten (10) Business Days
prior to the applicable record, determination or effective date specified in
such notice.
7. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
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Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder of this Warrant against
dilution or other impairment. Without limiting the generality of the foregoing,
the Company (a) will not increase the par value of any shares of stock
receivable on the exercise of this Warrant above the amount payable therefor on
such exercise, (b) will at all times reserve and keep available the maximum
number of its authorized shares of Common Stock, free from all preemptive rights
therein, which will be sufficient to permit the full exercise of this Warrant,
and (c) will take all such action as may be necessary or appropriate in order
that all Warrant Shares will, upon issuance, be duly and validly issued, fully
paid and nonassessable, and free from all taxes, liens and charges with respect
to the issue thereof.
8. REPLACEMENT OF WARRANT. On receipt by the Company of an affidavit of
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an authorized representative of the Holder stating the circumstances of the
loss, theft, destruction or mutilation of this Warrant (and in the case of any
such mutilation, on surrender and cancellation of such Warrant), the Company at
its expense will promptly execute and deliver, in lieu thereof, a new Warrant of
like tenor.
9. RESTRICTIONS ON TRANSFER.
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(a) The term "HOLDER" as used herein shall also include any transferee
of this Warrant whose name has been recorded by the Company in the Warrant
Register (as hereinafter defined). Each transferee of this Warrant acknowledges
that this Warrant has not been registered under the Securities Act and may be
transferred only pursuant to an effective registration under the Securities Act
or pursuant to an applicable exemption from the registration requirements of the
Securities Act.
(b) The Company shall maintain a register (the "WARRANT REGISTER") in
its principal office for the purpose of registering the Warrant and any transfer
thereof, which register shall reflect and identify, at all times, the ownership
of any interest in the Warrant. Upon the issuance of this Warrant, the Company
shall record the name of the initial purchaser of this Warrant in the Warrant
Register as the first Holder. Upon surrender for registration of transfer or
exchange of this Warrant together with a properly executed Form of Assignment
attached hereto as Exhibit B at the principal office of the Company, the Company
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shall, at its expense, execute and deliver one or more new Warrants of like
tenor which shall be exercisable for a like aggregate number of shares of Common
Stock, registered in the name of the Holder or a transferee or transferees.
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(c) This Warrant may be transferred or assigned by the Holder at
anytime to any Person other than an entity that conducts business in the same
industry and in direct competition with the Company. Notwithstanding the
foregoing, the Holder may transfer or assign this Warrant at any time to its
Permitted Transferees (as such term is defined in the Stockholders Agreement).
10. NO RIGHTS OR LIABILITY AS A STOCKHOLDER. This Warrant does not entitle
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the Holder hereof to any voting rights or other rights as a stockholder of the
Company. No provisions hereof, in the absence of affirmative action by the
Holder hereof to purchase Common Stock, and no enumeration herein of the rights
or privileges of the Holder shall give rise to any liability of such Holder as a
stockholder of the Company.
11. CHARGES, TAXES AND EXPENSES. Issuance of certificates for shares of
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Common Stock upon the exercise of this Warrant shall be made without charge to
the Holder hereof for any issue or transfer tax, or other incidental expense, in
respect of the issuance or delivery of such certificates or the securities
represented thereby, all of which taxes and expenses shall be paid by the
Company.
12. AMENDMENT OR WAIVER. This Warrant and any term hereof may be amended,
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waived, discharged or terminated only by and with the written consent of the
Company and the Holder.
13. NOTICES. Any notice or other communication (or delivery) required or
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permitted hereunder shall be made in writing and shall be by registered mail,
return receipt requested, telecopier, courier service or personal delivery to
the Company at its principal office as specified in Section 11.2 of the Purchase
Agreement and to the Holder at its address as it appears in the Warrant
Register. All such notices and communications (and deliveries) shall be deemed
to have been duly given: when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial overnight courier service; five
Business Days after being deposited in the mail, postage prepaid, if mailed; and
when receipt is acknowledged, if telecopied.
14. CERTAIN REMEDIES. The Holder shall be entitled to an injunction or
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injunctions to prevent breaches of the provisions of this Warrant and to enforce
specifically the terms and provisions of this Warrant in any court of the United
States or any state thereof having jurisdiction, this being in addition to any
other remedy to which such Holder may be entitled at law or in equity.
15. GOVERNING LAW. This Warrant shall be governed by and construed in
-------------
accordance with the laws of the State of New York, without regard to the
principles of conflicts of law of such State.
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16. HEADINGS. The headings in this Warrant are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
BANKVEST CAPITAL CORP.
By: ________________________________
Name:
Title:
12
Exhibit A to Common
Stock Purchase Warrant
------------------------------
[FORM OF]
ELECTION TO PURCHASE SHARES
The undersigned hereby irrevocably elects to exercise the Warrant to
purchase _____ shares of Class A Common Stock, $1.00 par value per share
("COMMON STOCK"), of BANKVEST CAPITAL CORP. (the "COMPANY") and hereby [makes
payment of $_______ therefor] [or] [makes payment therefor by assignment to the
Company pursuant to Section 2(b)(ii) of the Warrant of $_____________ aggregate
principal amount of Note (as defined in the Warrant)] [or] [makes payment
therefore by surrendering pursuant to Section 2(b)(iii) _____ shares of Common
Stock of the Company] [or] [makes payment therefor by cancellation pursuant to
Section 2(b)(iv) of a portion of the Warrant with respect to _________ shares of
Common Stock]. The undersigned hereby requests that certificates for such shares
be issued and delivered as follows:
ISSUE TO:_______________________________________________________________________
(NAME)
________________________________________________________________________________
(ADDRESS, INCLUDING ZIP CODE)
________________________________________________________________________________
(SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER)
DELIVER TO:_____________________________________________________________________
(NAME)
________________________________________________________________________________
(ADDRESS, INCLUDING ZIP CODE)
If the number of shares of Common Stock purchased hereby is less than
the number of shares of Common Stock covered by the Warrant, the undersigned
requests that a new Warrant representing the number of shares of Common Stock
not purchased be issued and delivered as follows:
ISSUE TO:_______________________________________________________________________
(NAME OF HOLDER)
________________________________________________________________________________
(ADDRESS, INCLUDING ZIP CODE)
DELIVER TO:_____________________________________________________________________
(NAME OF HOLDER)
________________________________________________________________________________
(ADDRESS, INCLUDING ZIP CODE)
Dated: _________________________ [NAME OF HOLDER]
By: ___________________________________
Name:
Title:
_____________________________
/1/ Name of Holder must conform in all respects to name of Holder as specified
on the face of the Warrant.
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Exhibit B to Common
Stock Purchase Warrant
------------------------------
[FORM OF] ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers unto the Assignee named below all of the rights of the undersigned to
purchase Class A Common Stock, $1.00 par value per share ("COMMON STOCK"), of
BANKVEST CAPITAL CORP. represented by the Warrant, with respect to the number of
shares of Common Stock set forth below:
Name of Assignee Address No. of Shares
---------------- ------- -------------
and does hereby irrevocably constitute and appoint ____________________________
Attorney to make such transfer on the books of BANKVEST CAPITAL CORP. maintained
for that purpose, with full power of substitution in the premises.
Dated: _________________ [NAME OF HOLDER]
By: ____________________________________________
Name:
Title:
_____________________________
/1/ Name of Holder must conform in all respects to name of Holder as specified
on the face of the Warrant.
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